Lucero v. Holbrook

Appellee left her car unattended with the motor running in her private driveway while she briefly returned to her home to retrieve her pocketbook. In the interim, Colbey Emms stole her vehicle. Emms later got into a high-speed chase, which ended when the car he was driving collided with a vehicle driven by Appellant, the mother of two children (collectively, Appellants). Appellant sued Appellee, alleging that Appellee breached a duty of due care to her and her children by leaving her car unattended with the keys in the ignition. The district court granted Appellee's motion for summary judgment on the basis that no duty was owed to Appellants under either the common law or by statute, and that Appellee's leaving of her keys in her car with the motor running was not the proximate cause of the accident. The Supreme Court affirmed, holding (1) Appellee's conduct was not proscribed by statute and therefore did not result in the violation of a statutory duty of care; and (2) Appellee did not owe Appellants a common law duty of care to protect them from the harm that occurred in this case.

KATRINA LUCERO and EL and IL, by and through their next Friend, Guardian and Mother, KATRINA LUCERO v. NANETTE HOLBROOK2012 WY 152Case Number: S-12-0062Decided: 11/30/2012This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

OCTOBER TERM, A.D.
2012

KATRINA
LUCERO and EL and IL, by and through their next Friend, Guardian and Mother,
KATRINA LUCERO,

[¶1]
Nanette Holbrook, the appellee, left her car unattended with the
motor running in her private driveway while she briefly returned to her home to
retrieve her pocketbook. In the
interim, Colbey Emms (Emms), a methamphetamine
user, stole her vehicle. Emms later got into a
high-speed chase with the police, which ended when the car he was driving
collided with a vehicle driven by Katrina Lucero (Lucero), one of the
appellants, and mother of EL and IL, also appellants. Lucero
filed a complaint on behalf of herself and her children alleging that
the appellee breached a duty to them of due care by leaving her car
unattended with the keys in the ignition. The district court
granted the appellee’s motion for summary judgment on the basis that
no duty was owed to the appellants under either the common law or by statute,
and that the appellee’s leaving of her keys in her car with the
motor running was not the proximate cause of the accident. We
affirm.

ISSUE

[¶2]
Did the district court appropriately grant the appellee’s
motion for summary judgment?

FACTS

[¶3]
On the morning of December 18, 2009, the appellee got
into her car, started the engine, and pulled the car out of her garage and onto
her driveway as she was preparing to leave her home to go to work.
She soon realized that she had forgotten her purse and returned to her
home to retrieve it, leaving the car doors unlocked and engine
running. Within approximately three minutes,
the appellee returned to the driveway only to find the car
missing. She quickly returned to the house and called 911 to
report that her car had been stolen.

[¶4]
The appellee testified that she did not see anyone suspicious
in the vicinity of her driveway at the time that she had returned to the
house. Nevertheless, Emms stole her vehicle
during the appellee’s brief absence. The police
located Emms driving the stolen vehicle and made contact
with Emms who then attempted to flee. This
evolved into a high-speed chase. The chase ended soon
after Emms collided with Lucero, who was driving with her two
children, ages six months and five years, to her mother’s house.
Lucero and her children suffered serious
injuries. Emms was under the influence of
methamphetamine at the time of the accident.

[¶5]
The appellants filed a complaint in district court alleging that the
appellee, by leaving the keys in the ignition of her unattended vehicle,
was negligent and that such negligence was the proximate cause of the injuries
incurred by the appellants. In response,
the appellee filed a motion for summary judgment which the district
court granted, finding that (1) the appellee owed the appellants no
duty of care under the circumstances either by statute or under the common law,
and (2) the appellee’s act of leaving the keys in the ignition was
not the proximate cause of the appellants’ injuries. The
appellants now appeal that decision.

We treat the summary
judgment movant's motion as though it has been presented originally
to us. We use the same materials in the record that was
before the district court. Using the materials in the record,
we examine them from the vantage point most favorable to the nonmoving party
opposing the motion, giving that party the benefit of all favorable inferences
which may fairly be drawn from the materials. . . . If doubt
exists about the presence of genuine issues of material fact after we have
reviewed the record, we resolve that doubt against the movant.

[¶7]
Negligence occurs when one fails to act as would a reasonable person of
ordinary prudence under like
circumstances. Keehn v. Town of
Torrington, 834 P.2d 112, 114 (Wyo. 1992).
More specifically, to establish negligence, the following must be
shown:

(1) The defendant
owed the plaintiff a duty to conform to a specified standard of care, (2) the
defendant breached the duty of care, (3) the defendant’s breach of the duty of
care proximately caused injury to the plaintiff, and (4) the injury sustained by
the plaintiff is compensable by money damages.

Hatton v. Energy
Elec. Co., 2006 WY 151, ¶ 10,
148 P.3d 8, 13 (Wyo. 2006) (quoting Valance v. VI-Doug, Inc,,
2002 WY 113, ¶ 8, 50 P.3d 697, 701 (Wyo. 2002)).
Duty and breach of duty must be established before addressing causation
and the tortfeasor’s responsibility for any harm
suffered. See Halpern v.
Wheeldon, 890 P.2d 562, 565 (Wyo.
1995); Sapone v. Grand Targhee, Inc.,
308 F.3d 1096, 1103 (10th Cir. 2002). “Elements
(1) and (2), duty and breach of duty, address whether the conduct of the
alleged tortfeasor was in fact negligent. Element
(3), proximate cause, is considered only after negligence is first established
to determine whether the tortfeasor should be legally responsible
for his negligence.” Keehn,
834 P.2d at 115. Proximate cause addresses the
scope of a defendant’s liability and is a question of fact for the
factfinder, and less appropriate for a summary judgment
action. Restatement (Third) of Torts § 7 (2010).

[¶8]
A duty may arise based upon the existence of a contract, a statute, or
the common law, “or when the relationship of the parties is such that the law
imposes an obligation on the defendant to act reasonably for the protection of
the plaintiff.” Killian v. Caza Drilling,
Inc., 2006 WY 42, ¶ 8, 131 P.3d 975, 980 (Wyo. 2006) (quoting
Hamilton v. Natrona County Educ. Ass’n, 901 P.2d 381,
384 (Wyo. 1995)). The appellee clearly had no
contractual relationship with the appellants, nor did the appellants have a
special or particular relationship with the appellee beyond all
being members of the public. Regarding the existence of a
statutory duty, the appellants argue in their reply brief that the following
statute creates a duty which the appellee breached:

§ 31-5-509.
Requirements before leaving motor vehicle unattended.

No person driving or in charge of a motor vehicle shall permit it to
stand unattended without first stopping the engine, locking the ignition,
removing the key from the ignition, effectively setting the brake thereon and,
when standing upon any grade, turning the front wheels to the curb or side of
the highway.

Wyo. Stat. Ann. §
31-5-509 (LexisNexis 2011). This statute does not, however,
apply to motor vehicles parked in private driveways. Chapter
5 is entitled “Regulation of Traffic on Highways.” The
statute is clear regarding its applicability: “The provisions of this act
relating to the operation of vehicles refer exclusively to the operation of
vehicles upon highways except: (i) Where a different place is
specifically referred to in a given section[.]” Wyo. Stat.
Ann. § 31-5-103 (LexisNexis 2011). Because “a different
place” is not referenced in Wyo. Stat. Ann. § 31-5-509, the statute applies only
to vehicles “stand[ing] unattended” upon a highway.

[¶9]
The Act defines “highway” and “street” synonymously as being “the entire
width between the boundary lines of every way publicly maintained or if not
publicly maintained, dedicated to public use when any part thereof is open to
the use of the public for purposes of vehicular travel[.]”
Wyo. Stat. Ann. § 31-5-102(a)(xlix) (LexisNexis 2011).
The appellants suggest, with little analysis, that
the appellee’s driveway is “open to the use of the public for
purposes of vehicular travel.” We find this contention
unsupported by law or logic. The appellants point out that
the harm that may occur where a car is left in a condition violating Wyo. Stat.
Ann. § 31-5-509 on private property is similar, if not identical, to the harm
that may occur by leaving a car in the same condition on a public
highway. That may very well be the case.
The legislature was specific, however, in limiting the application of
this statute to public highways. “Where statutory language
conveys a clear and definite meaning, this court neither faces the need nor
acquires the license to construe the statute.” State v.
Curtis, 2002 WY 120, ¶ 8, 51 P.3d 867, 869 (Wyo.
2002). As we have said many times, if the legislature wanted
to make the statute more general in its applicability, it could have done
so.

[¶10]
The existence of a duty as derived from the common law is a more
complicated matter. As the appellants discuss, this Court has
relied upon a number of factors in determining whether the common law creates a
duty of care.

Some of the key
policy factors to be considered are: (1) the foreseeability of harm
to the plaintiff, (2) the closeness of the connection between the defendant's
conduct and the injury suffered, (3) the degree of certainty that the plaintiff
suffered injury, (4) the moral blame attached to the defendant's conduct, (5)
the policy of preventing future harm, (6) the extent of the burden upon the
defendant, (7) the consequences to the community and the court system, and (8)
the availability, cost and prevalence of insurance for the risk
involved.

Gates v.
Richardson, 719 P.2d
193, 196 (Wyo. 1986). Despite the appellants’ arguments
to the contrary, we find that the balancing of these factors weighs against the
imposition of a duty of care owed to the appellants by the
appellee.

[¶11]
In their brief, the appellants point out that the appellee
admitted that there is a heightened risk of car theft when keys are left in a
vehicle. Tort liability, however, requires that the harm that
befell a plaintiff was foreseeable by the tortfeasor.
Id. at 196. In the case at hand, for instance,
the appellants must show that the injuries they incurred were foreseeable by the
appellee, rather than that the car theft was foreseeable.
We have recently discussed the importance of foreseeability
in establishing common law negligence:

Many factors inform
the duty analysis, but the most important consideration is
foreseeability. Generally a defendant owes a duty of
care to all persons who are foreseeably endangered by his conduct
with respect to all risks which make the conduct unreasonably
dangerous. Foreseeability establishes a 'zone of
risk,’ which is to say that it forms a basis for assessing whether the conduct
creates a generalized and foreseeable risk of harming others.

Glenn v. Union Pac.
R.R. Co., 2011 WY 126, ¶
34, 262 P.3d 177, 193 (Wyo. 2011)
(quoting Beugler v. Burlington Northern & Santa Fe
Ry., 490 F.3d 1224, 1228 (10th Cir. 2007)).
Glenn, a coal mine employee, was injured by falling coal when he opened
the unlocked dump doors of a rail car. Id. at ¶ 7, at
181. We agreed with the district court that such an injury
was foreseeable “[g]iven the uncomplicated nature of the
accident.” Id. at ¶ 36, at 194.
“One needs only a basic familiarity with the law of gravity to anticipate
that heavy material precariously perched on an unlocked door may come down with
unfortunate consequences.” Id.

[¶12]
Such scientific simplicity was not at work in the case at
hand. It is not sufficient to say that merely because
something did happen, the result was foreseeable. The
injuries suffered by the appellants were not a natural consequence of the
actions of the appellee, as was the case in Glenn.
It was not as if the appellee left her car at the top of a
hill with the parking brake disengaged, and the car rolled downward, injuring a
passerby. The appellee momentarily left her car
running in her own private driveway. In that brief interim, a
methamphetamine user came upon the vehicle, trespassed on
the appellee’s property, and stole her car. After
the car was reported stolen, the police located the thief with the vehicle and
pursued him in a high-speed chase. That chase tragically
ended in a violent car accident. We cannot say that the
appellants’ injuries resulting from a subsequent high-speed chase were a
foreseeable consequence of the appellee’s act of momentarily leaving
her car unattended in her driveway.

[¶13]
The closeness of the connection between the injury suffered and
the appellee’s conduct is a corollary of
foreseeability. Foreseeability addresses
whether the harm incurred was a natural consequence of the
alleged tortfeasor’s actions. The closeness of
the connection between the injury and the conduct is related to causation and
contemplates whether any intervening conduct contributed to the
harm. In Sorensen v. State Farm Auto. Ins. Co., State
Farm alleged that Sorensen, the owner of, but not the driver of, a vehicle
involved in a car accident with State Farm’s insured drivers, violated Wyoming
law by failing to maintain liability insurance on her vehicle.
2010 WY 101, ¶ 2, 234 P.3d 1233, 1235 (Wyo.
2010). We held that Sorensen owed no duty of care under
statute or the common law. Id. at ¶ 38, at
1244. In our analysis of the Gates factors listed
above, see supra ¶ 10, we found that the damages incurred were closely
connected with the driver’s failure to exercise reasonable care in the operation
of the vehicle, rather than to Sorensen’s failure to maintain
insurance. Id. at ¶ 29, at 1242.

[¶14]
It is true that the appellee’s act of leaving her car’s motor
running while she briefly returned to her home contributed to a chain of events
that ended in a motor vehicle accident between the appellants and the car
thief. The appellee’s conduct, however, was not
sufficiently connected to the harm incurred to find that
the appellee had a duty to prevent that harm.

[¶15]
Regarding the third factor, there is no doubt that the appellants were
injured.

[¶16]
Moral blame results from misconduct more extreme than ordinary
negligence. Erpelding, 2003 WY 80, ¶ 26,
71 P.3d at 759. Such culpability may result where
the alleged tortfeasor “is the party best in the position to prevent
injury.” Larsen v. Banner Health Sys., 2003 WY 167, ¶
30, 81 P.3d 196, 205 (Wyo. 2003). We cannot agree
with the appellants that the appellee “essentially
deliver[ed] [the] vehicle” to a drug-impaired thief.
The fact that the appellee’s conduct may have contributed in
some way to the accident that occurred does not make her morally
culpable. Certainly, Emms, who was driving the vehicle
at a high rate of speed in an attempt to elude the police, was in a better
position to prevent the harm to the appellants than was the
appellee. In truth, the same can be said about the
police officer or officers involved in the pursuit. And
sadly, the same can even be said about Lucero because the accident occurred at
an intersection that Lucero entered against a red light.

[¶17]
While the harm suffered by the appellants in the instant case would not
have occurred if the appellee had removed her keys from the
ignition, these circumstances are so unique that imposing a duty upon every
Wyoming resident not to leave a car in the driveway with the motor running will
not likely prevent future harm such as this. We say this
primarily because, as the district court found, even if we recognized the
existence of a duty, there simply is no proximate cause connection between the
acts of the appellee and the harm to the appellants.

In order for
proximate cause to exist, “the accident or injury must be the natural and
probable consequence of the act of negligence.” Foote v.
Simek, 2006 WY 96, ¶ 22, 139 P.3d 455, 463 (Wyo.
2006). In fact, “[t]he ultimate test of proximate cause
is foreseeability of injury. In order to qualify
as a legal cause, the conduct must be a substantial factor in bringing about the
plaintiff’s injuries.” Foote, ¶ 22,
139 P.3d at 464. In our consideration of cases
involving proximate cause, we have discussed not only what constitutes proximate
cause, but also what does not:

In Lemos
v. Madden, 28 Wyo. 1, 200 P. 791, 793 (1921), this court first defined
proximate cause as “[t]hat which, in a natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without which the
result would not have occurred.” This same definition has
been relied upon in recent years. Robertson v. TWP,
Inc., 656 P.2d 547 (Wyo. 1983); Kopriva v.
Union Pacific R. Co., 592 P.2d 711 (Wyo. 1979).
In Lemos v. Madden, supra, 200 P.
at 794, the court also rejected a “but for” rule of causation,
stating:

“* * *
But if the original wrong furnished only the condition or occasion, then
it is the remote and not the proximate cause, notwithstanding the fact that
there would have been no loss or injury but for such condition or occasion. * *
*”

In later cases our
court has identified legal causation as that conduct which is a substantial
factor in bringing about the injuries identified in the complaint.
McClellan v. Tottenhoff, Wyo. 666 P.2d 408
(Wyo. 1983); Chrysler Corporation v. Todorovich,
580 P.2d 1123 (Wyo. 1978); Phelps v. Woodward Construction
Co., 66 Wyo. 33, 33, 204 P.2d 179 (Wyo. 1949).
The obvious rationalization of that approach with the two propositions
found in Lemos v. Madden, supra, is that if the
conduct is “that cause which in natural and continuous sequence, unbroken by a
sufficient intervening cause produces the injury, without which the result would
not have occurred,” it must be identified as a substantial factor in bringing
about the harm. If, however, it created only a condition or
occasion for the harm to occur then it would be regarded as a remote, not a
proximate, cause, and would not be a substantial factor in bringing about the
harm. An alternative method for explaining these concepts is
found in the discussions of intervening cause in our cases.
McClellan v. Tottenhoff,
supra; Kopriva v. Union Pacific R. Co.,
supra; Gilliland v. Rhoads, 593 P.2d 1221 (Wyo. 1975);
Fagan v. Summers, 498 P.2d 1227 (Wyo. 1972); and Tyler v.
Jensen, 75 Wyo. 249, 295 P.2d 742 (Wyo. 1956).
An intervening cause is one that comes into being after a
defendant’s negligent act has occurred, and if it is not a foreseeable event it
will insulate the defendant from liability. It is reasonably
foreseeable if it is a probable consequence of the defendant’s wrongful act or
is a normal response to the stimulus of the situation created
thereby. Killian v. Caza Drilling,
Inc, 2006 WY 42, ¶ 20, 131 P.3d 975, 985 (Wyo. 2006).

Collings v.
Lords, 2009 WY 135, ¶ 6,
218 P.3d 654, 656-57 (Wyo. 2009) (emphasis added).
Under any statement or formulation of these tests,
the appellee’s conduct in the instant case was not a proximate cause
of the appellants’ injuries.

[¶18]
The appellants argue that the appellee easily could have
removed her keys from the ignition before returning to her house and that
imposing a duty on the appellee to that extent would not impose a
substantial burden. The burden that this factor addresses is
not, however, the effortlessness in removing the keys, but rather the burden
that will result from imposing a duty not to leave the motor running temporarily
in a vehicle parked in one’s driveway. It must be remembered
that the imposition of a duty not to leave the motor running in a vehicle in
one’s driveway would apply across the board, and would create potential
liability for every person in Wyoming who, on a cold winter day, starts his or
her car to warm it up and defrost the windshield before driving upon the public
highways.

[¶19]
Finally, the appellants present no facts or analysis indicating whether
motor vehicle insurance covering these circumstances--harm caused by the theft
of one’s vehicle left with its motor running in a private driveway--is
available, prevalent, or costly. We will not, therefore,
consider this factor.

[¶20]
Our task here is to determine whether the interest of the appellants who
have “suffered invasion [were] entitled to legal protection at the hands of the”
appellee. Daniels v. Carpenter, 2003 WY 11, ¶
21, 62 P.3d 555, 563 (Wyo. 2003) (citing Duncan v. Afton,
Inc., 991 P.2d 739, 742 (Wyo. 1999)). We
conclude that, under the facts presented as analyzed under Gates,
the appellee did not owe the appellants a duty of care.
And even if such a duty was recognized, the acts of
the appellee were not the proximate cause of the appellants’ harm.
The district court properly granted summary
judgment.

CONCLUSION

[¶21]
The appellee’s conduct was not proscribed by statute and
therefore does not result in the violation of a statutory duty of
care. The harm suffered was not a foreseeable consequence of
the appellee’s conduct, nor was it closely connected to the
conduct. The appellee’s actions are not deserving
of moral blame. Imposing a duty on the appellee
under these circumstances would substantially burden her and Wyoming residents
in general. We conclude that the appellee did not
owe the appellants a common law duty of care to protect them from the harm that
occurred in this case, and we therefore affirm the district court’s grant of
summary judgment.